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ELCDismissedNot stated on the face of the judgment (miscellaneous suit arising from notice of motion dated 22.5.2023)· [2024] KEELC 7007 (KLR)

Aveco Ltd v John Joseph Ndung'u Mwenja & Partners Ltd & 2 others (Environment and Land Miscellaneous Application E131 of 2023) [2024] KEELC 7007 (KLR)

Environment and Land Court
17 October 2024
LMLucy N. Mbugua
493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a parallel land injunction suit as an abuse of process, ruling interim relief must be sought in the pending appeal.

What this practically means

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Executive summary

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The applicant filed a miscellaneous suit by notice of motion dated 22 May 2023 seeking injunctive orders, including a temporary injunction pending the hearing and determination of Appeal no. 40 of 2023. The application was dismissed for want of prosecution on 3 July 2024, later reinstated by ruling of 9 October 2024, at which point it emerged that the applicants had themselves filed the substantive appeal no. E40 of 2023, pending before Judge Omange. On 15 October 2024 the parties submitted on whether this suit should be sustained. The respondents questioned why the suit was filed; the applicants did not dispute the appeal but contended that this suit was meant to preserve the suit property, having been served with an eviction notice. The court held that since the substantive appeal had already been filed when this suit was instituted, and the prayers sought were expressly tied to that appeal, the applicants could and should have filed the application in the substantive suit. In the absence of any plausible explanation, the court found the filing of the suit to be an abuse of court process, applying the principle in Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex Parte Law Society of Kenya [2020] eKLR on multiplicity of actions. The suit was accordingly dismissed with costs to the respondents on 17 October 2024.

Key legal issues

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Whether filing a separate suit seeking interim relief already available in a pending substantive suit amounts to abuse of court process

Holding

Yes - where a substantive suit (here an appeal) is already pending, an applicant must seek interim relief in that suit, and a parallel suit is an abuse of process

Reasoning

The court noted that the application sought a temporary injunction pending the hearing and determination of Appeal no. 40 of 2023, showing that the substantive appeal was filed before this suit. No plausible explanation was advanced for not filing the application in the substantive suit, so the filing was abusive and the suit was dismissed with costs.

p. 2

Legal principles established

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  • Multiplicity of actions on the same matter between the same parties constitutes an abuse of court process where no justification exists for the parallel suit

Court orders

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  1. 1.The suit is dismissed with costs to the respondents

Authorities

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Cases cited (1)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex Parte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aveco Ltd v John Joseph Ndung'u Mwenja & Partners Ltd & 2 others (Environment and Land Miscellaneous Application E131 of 2023) [2024] KEELC 7007 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (miscellaneous suit arising from notice of motion dated 22.5.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7007/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.